An Initial Thought on the Prop. 77 Decision

Subject: An Initial Thought on the Prop. 77 Decision

From: Rick Hasen

Date: 8/9/2005, 2:58 PM

To: election-law

http://electionlawblog.org/archives/003835.html

An Initial Thought on the Prop. 77 Decision

It will be minutes (if it has not happened already) before someone in the blogosphere or in the media comments that the judges who decided this case broke down on partisan lines. The two judges appointed by Democrats voted to keep the redistricting measure off the ballot, and the one judge appointed by a Republican dissented. It will be easy to say that each made a decision expected to beneift his or her political party.

I think that is overly simplistic. The justices differed on both the scope of pre-election review and application of the substantial compliance doctrine. It is of course possible that this is motivated consciously by partisan considerations. I think the better explanation is that subconscious loyalties played a role, much like we saw the near perfect breakdown on partisan lines of opinion during the Florida 2000 mess. (Cass Sunstein has written a bit about the psychology of all this in his piece in "The Vote" book.)

Perhaps this phenomenon is inevitable in cases with high partisan stakes. In the end, I think the trial court judge hearing the Prop. 77 case got it right when she wrote:

There is no good reason to put the courts in the position of having to decide what is good enough for qualifying an initiative measure for the ballot when actual compliance is easily attainable. The initiative process is to important to so broadly apply the doctrine of substantial compliance as RPI has requested. To rule otherwise would run the risk of the court inappropriately interjecting itself into the "political thicket."
This case resulted from the initiative circulators' own negligence. It is that negligence that put the courts in this uncomfortable position.

What's next? I believe the California Supreme Court is likely to refuse to reverse the Court of Appeal, but it is not out of the question.

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org